Executive Authority in a post-Westphalian World: How Global Trends Influence U.S. Separation of Powers

Printer-friendly version
Jon D. Michaels

Crosspost from Balkinization

The rise of Executive power in the post-9/11 era can be attributed to many things.  Chief among them are strident assertions of unfettered Article II powers during times of crisis,[1] the legislative flurry to satisfy the President’s wish list in the aftermath of the terrorist attacks,[2] and the notion that combating al Qaeda requires working on the so-called “dark side” of the law.[3]

At the end of the day, though, what might change the constitutional landscape in terms of Executive authority and separation of powers more than anything else are the dynamic, organic trends toward greater globalization, liberalization of political economies, and technological revolution.  These trends deemphasize national boundaries, enable non-statist transnational connections, and promote markets over bureaucracies – and thus they are often thought to erode state authority and empower non-state actors, including al Qaeda.[4]

Of late, the Executive has itself adapted to these trends and seized upon opportunities created by these movements to aggrandize power vis-à-vis the courts and Congress, patterning many of its national-security initiatives on more fluid and unconventional arrangements.  Its selective harnessing of these fluid arrangements and identities has enabled our military, intelligence, and homeland security officials to operate in the less regulated interstices of the national and international legal grid.  This grid is currently calibrated to the statist, Westphalian system where national governments monopolize the use of force, and conflict is between nation-states and understood in terms of defending clearly defined national boundaries.[5]

So long as the law lags behind novel innovations in organizational and tactical design made possible by globalization, liberalization, and new technologies, the Executive may exercise greater authority than it otherwise would possess.  Indeed, consider the following institutional, personnel, and geographic arrangements:

•    Institutional
      o    Coalition Provisional Authority: a quasi-U.S. entity[6] that had been in charge of key decisions regarding the Iraqi occupation, including disbanding the Iraqi Army and privatizing its state industries;[7] largely insulated from oversight and largely exempt from administrative law protocols[8] (including the Senate’s role in Appointments);[9] and, free to spend Iraqi oil funds and undertake other activities with broad discretion.[10]

•    Personnel
      o    Corporate Facilitation of Military and Counterterrorism Operations: U.S. intelligence officials solicit voluntary cooperation from telecoms, banks, and courier companies, thus bypassing otherwise applicable statutory and constitutional warrant requirements;[11] Defense officials hire contractors and maintain plausible deniability vis-à-vis sensitive operations (e.g., Blackwater assassination plans);[12] and, Defense officials’ use of contractors enlarges American fighting capacity, thus concealing the true scope of military operations (and casualty counts) and avoiding the need to initiate a civilian draft, seek greater international troop commitments, or scale back the engagement.[13]
      o    Foreign Interrogators/Interrogations: detainees brought to third-party nations where coercive techniques are legally employed.[14]

•    Geographic[15]
      o    Domestic Eavesdropping: Intelligence officials depart from prior practice of not engaging in warrantless domestic wiretapping on the ground that, now, wars and loyalties are borderless – and agents on American soil may be facilitating terrorist attacks.[16]

      o    Black Sites: detainees brought to undisclosed locations around the world, without the Executive having to acknowledge their confinement, document their whereabouts, or permit Geneva Convention inspections.[17]     

      o    Guantanamo: detainees held at Guantanamo, ostensibly to keep them beyond the reach of U.S. courts.[18]


Despite their varying degrees of success, these seemingly post-Westphalian reconfigurations[19] suggest ways in which the Executive is attempting to conduct national-security policy in less regulated space.  Though some of these practices precede the War on Terror,[20] and some have domestic, regulatory analogues,[21] today’s instantiations run an unprecedentedly wide gamut of novel arrangements and implicate a considerably broad set of legal, normative, and strategic questions.

As we think about the Constitution (and public law more generally) in 2020, much attention has focused on whether we should reach beyond our borders to consult and sometimes rely on relevant foreign and international law.[22]  What’s being described here is slightly different.  Here, the issues are how international trends transform or may be used to distort domestic practices and how our laws and doctrines should respond to these transformations and distortions.  That is to say, changes in the way the world works at the international level are having effects on the operation of separation of powers in the United States, with an obvious consequential impact on constitutional values.

In thinking through these issues, we will have to balance domestic versus international legal commitments; strategic versus normative priorities;[23] and, short-term, ad-hoc regulation (that closes gaps that emerge as innovative practices outpace the law [24]) versus structural, comprehensive reform that takes a more holistic approach to the changing world.  Moreover, in thinking through these problems, we might have to reassess our efforts in hastening, resisting, or steering technology gains, globalization, and political-economic liberalization[25] – a project of reassessment that might already be underway in light of growing disillusionment with market-driven governance[26] and growing alarm over the realization of a “National Surveillance State.”[27]


    [1] See, e.g., Legal Authorities Supporting the Activities of the NSA Described by the President, Office of Legal Counsel, U.S. Dep’t of Justice, Jan. 19, 2006, http://justice.gov/opa/whitepaperonnsalegalauthorities.pdf; Memorandum from Jay S. Bybee, Assistant Atty. Gen., Office of Legal Counsel, U.S. Dep’t of Justice, on The President’s Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations, to William J. Haynes, II, Gen. Counsel, Dep’t of Def. (Mar. 13, 2002), http://www.usdoj.gov/opa/documents/memorandum03132002.pdf; Memorandum from John C. Yoo, Dep’t Assistant Atty. Gen., Office of Legal Counsel, U.S. Dep’t of Justice, on Authorization for Use of Military Force Against Iraq Resolution of 2002, to Daniel J. Bryant, Assistant Atty. Gen., Office of Legislative Affairs, U.S. Dep’t of Justice (Oct. 21, 2002), http://www.washingtonpost.com/wp-srv/nation/documents/2002_1021_OLC_memo....

    [2] See, e.g., USA PATRIOT Act of 2001, Pub. L. No. 107-56, 115 Stat. 272; Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638; Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600; The Foreign Surveillance Act of 1978 Amendments Act of 2008, Pub. L. No. 110-261, 122. Stat. 2436.

    [3] Interview by Tim Russert with Richard Cheney, “Meet the Press” (Sept. 16, 2001).  See generally JANE MAYER, THE DARK SIDE: THE INSIDE STORY OF HOW THE AMERICAN WAR ON TERROR TURNED INTO A WAR ON AMERICAN IDEALS (2008).

    [4] See, e.g., Peter J. Spiro, Globalization and the (Foreign Affairs) Constitution, 63 OHIO STATE L.J. 649, 667-73 (2002); see also Richard H. Steinberg, Who Is Sovereign? 40 STAN. J INT’L L. 329, 329-30 (2004) (collecting authorities supporting this claim). 

    [5] See, e.g., PHILIP BOBBIT, THE SHIELD OF ACHILLES: WAR, PEACE, AND THE COURSE OF HISTORY 509-15 (2003); Rosa Ehrenreich Brooks, War Everywhere: Rights, National Security Law, and the Law of Armed Conflict in the Age of Terror, 153 U. PA. L. REV. 675, 702-09 (2004); Kal Raustiala, The Geography of Justice, 73 FORDHAM L. REV. 2501, 2508-09 (2005); Spiro, supra note 4, at 660-73.

    [6] See L. Elaine Halchin, The Coalition Provisional Authority (CPA): Origin, Characteristics, and Institutional Authorities, Cong. Research Servs. Report for Congress, Apr. 29, 2004, at CRS-7-14, http://www.fas.org/man/crs/RL32370.pdf.  Cf. U.S. ex rel. DRC, Inc. v. Custer Battles LLC, 376 F. Supp. 2d 618, 620 (E.D. Va. 2005), rev’d on other grounds, 562 F.3d 295 (4th Cir. 2009), (noting “the essential nature of the CPA is shrouded with ambiguity”).

    [8] See Hard Lessons: The Iraq Reconstruction Experience, Office of the Special Inspector General for Iraq Reconstruction, Feb. 2, 2009, http://www.sigir.mil/hardlessons/pdfs/Hard_Lessons_Report.pdf; Oversight of Funds Provided to Iraqi Ministries Through the National Budget Process, Office of the Special Inspector General for Iraq Reconstruction, Report No. 05-004, Jan. 30, 2005, http://www.sigir.mil/reports/pdf/audits/dfi_ministry_report.pdf (noting lack of transparency and insufficient managerial, financial and contractual control).

    [9] See Coalition Provisional Authority Memorandum Number 4, Contract and Grant Procedures Applicable to Vested and Seized Iraqi Property and the Development Fund for Iraq, Aug. 19, 2003, at 19, http://www.iraqcoalition.org/regulations/20030820_CPAMEMO_4_Contract_and... (declaring unavailability of an external appeals process for bid protests); Office of the Inspector General, Coalition Provisional Authority’s Contracting Processes Leading Up To and Including Contract Award, Office of the Inspector General, Coalition Provisional Authority Report No. 04-013, at 2 (2004), http://www.sigir.mil/reports/pdf/audits/cpaig_audit_cpa_contracting_proc... (reporting that the CPA “had not issued standard operating procedures”); Halchin, supra note 6, at Summary and CRS-2 (noting that none of the CPA principals were confirmed by the Senate); id. at CRS-24 (“The CPA Administrator exercises rule-making authority . . . .  Unlike the heads of federal agencies, however, the Administrator apparently has not followed the Administrative Procedure Act.”).

    [10] Halchlin, supra note 6, at CRS-32-33 (“Perhaps this ambiguity allows the [CPA] to perform multiple roles, each with its own chain of command, stakeholders or constituents, funding, and accountability policies and mechanisms. . . .   Possibly, the mix of arrangements allows CPA to operate with greater discretion and more authority, and have access to more resources than if it was solely a federal agency or an arm of the United Nations. . . .  By operating under more than one set of laws, regulations, and policies, CPA possibly could expand the scope and reach of the organization’s authority beyond what it would be otherwise.”); see also Hard Lessons, supra note 8.

    [11] See Jack M. Balkin, The Constitution in the National Surveillance State, THE CONSTITUTION IN 2020, at 179, 203 (Jack M. Balkin & Reva B. Siegel, eds. 2009); Jon D. Michaels, All the President’s Spies: Private-Public Intelligence Partnerships in the War on Terror, 96 CAL. L. REV. 901, 908-19 (2008); see also Danielle Keats Citron, Reservoirs of Danger: The Evolution of Public and Private Law at the Dawn of the Information Age, 80 S. CAL. L. REV. 241, 255 (2007); Daniel Solove & Chris Hoofnagle, A Model Regime of Privacy Protection, 2006 U. ILL. L. REV. 357, 359, 364-69.

    [12] See Mark Mazzetti, CIA Sought Blackwater’s Help To Kill Jihadists, N.Y. TIMES, Aug. 20, 2009, at A1.

    [13] See, e.g., Jon D. Michaels, Beyond Accountability: The Constitutional, Democratic, and Strategic Problems with Privatizing War, 82 WASH. U.L.Q. 1001 (2004); Martha Minow, Outsourcing Power: How Privatizing Military Efforts Challenges Accountability, Professionalism, and Democracy, 46 B.C. L. REV. 989, 1023-24 (2005).

    [14] See Jane Mayer, Outsourcing Torture, NEW YORKER, Feb. 14, 2005, at 106; Dana Priest & Joe Stephens, Long History of Tactics in Overseas Prisons Is Coming to Light, WASH. POST, May 11, 2004, at A1.

    [15] See Raustalia, supra note 5.

    [16] See, e.g., The NSA Program to Detect and Prevent Terrorist Attacks: Myth v. Reality, Office of Public Affairs, U.S. Dep’t of Justice, Jan. 27, 2006, at 3, http://justice.gov/opa/documents/nsa_myth_v_reality.pdf; James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16, 2005, at A1; see also Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 HARV. L. REV. 2047, 2049 (2005) (“The traditional concept of ‘enemy alien’ is inapplicable in this conflict; instead of being affiliated with particular states that are at war with the United States, terrorist enemies are predominantly citizens and residents of friendly states or even the United States. The battlefield lacks a precise geographic location and arguably includes the United States.”).

    [17] See Jane Mayer, The Black Sites, NEW YORKER, Aug. 13, 2007, at 46.

    [18] See, e.g., Brief for the Respondents, Boumediene v. Bush, No. 06-1195 (U.S. Oct. 9, 2007), available at http:// www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-1195_Respondent.pdf; Brief for Respondents, Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) (No. 05-184), available at http://www.usdoj.gov/osg/briefs/2005/3mer/2mer/2005-0184.mer.aa.pdf; Brief for the Respondents, Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (No. 03-6696), available at http:// www.usdoj.gov/osg/briefs/2003/3mer/2mer/2003-6996.mer.aa.pdf.

    [19] See, e.g., Paul Schiff Berman, The Globalization of Jurisdiction 151 U. PA. L. REV. 311 (2002); Rosa Ehrenreich Brooks, Failed States, or the State as Failure?, 72 U. CHI. L. REV. 1159 (2005); Laura A. Dickinson, Public Values in a Privatized World, 31 YALE J. INT’L L. 383 (2006); Raustalia, supra note 5.

    [20] See PAUL VERKUIL, OUTSOURCING SOVEREIGNTY 10-13 (2007); Charles Tiefer, The Iraq Debacle, 29 U. Pa. J. Int’l L 1, 29 n. 139 (2007); Leslie Wayne, America’s For-Profit Secret Army, N.Y. TIMES, Oct. 12, 2002, at C1.

    [21] See Jon D. Michaels, Privatization’s Pretensions, 77 U. CHI. L. REV. __ (forthcoming 2010).

    [22] See, e.g., Vicki C. Jackson, Progressive Constitutionalism and Transnational Legal Discourse, in THE CONSTITUTION IN 2020, at 285, 288-93 (Jack M. Balkin & Reva B. Siegel, eds. 2009); Harold Hongju Koh, America and the World, in THE CONSTITUTION IN 2020, at 313, 318-20  (Jack M. Balkin & Reva B. Siegel, eds. 2009).

    [23] See, e.g., David Cole, “Strategies of the Weak”: Thinking Globally and Acting Locally Toward a Progression Vision of the Constitution, in THE CONSTITUTION IN 2020, at 297, 298 (Jack M. Balkin & Reva B. Siegel, eds. 2009).

    [24] For extensions of criminal liability to military contractors overseas, see John Warner National Defense Authorization Act for FY 2007, §552, P.L. 109-364, 120 Stat, 2083, 2217 (2006) (amending 10 U.S.C. §802(a)(1)); Military Extraterritorial Jurisdiction Act of 2000, 18 U.S.C. §§ 3261-67.  For extensions in the reach of habeas, see Boumediene v. Bush, 128 S. Ct. 2229, 2259-62 (2008).

    [25] See Steinberg, supra note 4, at 334-39 (describing ways in which powerful states harness global trends to enhance their own authority).

    [26] See, e.g., VERKUIL,  supra note 20; see also Sundeep Tucker & Jamil Anderlini, Economic Leaders Call for Tighter Rules in Global Financial System, FIN. TIMES, Sept. 29, 2008, at 1.

     [27] Balkin, supra note 11; Jack M. Balkin, The Constitution in the National Surveillance State, 93 MINN. L. REV. 1 (2008); Jack M. Balkin & Sanford Levinson, The Processes of Constitutional Change: From Partisan Entrenchment to the National Surveillance State, 75 FORDHAM L. REV. 489 (2006).


Jon D. Michaels is Acting Professor of Law at UCLA School Law. He will be appearing on Friday's "America and the World" panel with Muneer Ahmad (Yale Law School, "Personhood in Citizenship's Shadow"), Aziz Huq (University of Chicago Law School, "The Transformative Potential of Muslim America"), and Jenny Martinez (Stanford Law School, "Constitutional Rights as Human Rights?").